April 6, 2016; St. Louis Post-Dispatch

Prosecutorial misconduct is notoriously difficult to prove and even more infrequently reported. When misconduct can be proven, prosecutors are rarely, if ever, reprimanded. Therefore, many were somewhat surprised by the Missouri Court of Appeals’ unprecedented decision this week. The appeals court has barred the St. Louis County prosecutor’s office from trying a murder case after it was discovered prosecutors had broken the defense’s attorney-client privilege, effectively violating the defendant’s due process rights.

While charges were filed in 2011, there have been several noteworthy events in the case over the past several years—many that some would argue would deprive the defendant of her rights when the case goes to trial. Jennifer Winkler, 34, was charged with second-degree murder in 2011 for the death of 13-month-old Lily Rieger, who prosecutors says was shaken to death at a home daycare run by Winkler. Since then, information came to light that prosecutors spoke to Winkler’s ex-husband, Steven Winkler, who reportedly divulged the defense’s trial strategy. The information provided by the ex-husband is considered privileged under the attorney-client confidentiality.

According to court documents in January, the defendant’s ex-husband contacted and sent emails regarding the case to Assistant Prosecutor Sheila Whirley in September 2015. Despite knowing using the material would violate attorney-client privilege, Whirley still met with the ex-husband, another prosecutor, and an investigator in November of last year. At the meeting, she reportedly said she wanted “to determine if he had credible information that would assist the state in prosecuting the defendant for the alleged child abuse and murder.”

On the separate matter of the custody of their children, Winkler’s attorney represented both parties, illustrating the ex-husband did have information that could help the prosecution’s case. Winkler’s attorneys asked for the prosecutors to be disqualified from trying her case.

The judge, Steven Goldman, ruled on the motion to disqualify the prosecutors in February but sealed the documents and would not reveal his decision. However, in a conversation with the St. Louis Post-Dispatch, which has been following the hearings and the misconduct allegations since charges were filed, Winkler’s attorneys said at the time that they would challenge the judge’s decision, although, as indicated in the court’s decision, Goldman had agreed there had been a breach of privilege and the information in the emails should be excluded. The attorneys filed a petition for a writ of mandamus, or prohibition, against the judge asking to disqualify the attorneys, and it was granted this Tuesday in a 3-0 decision.

The decision found Goldman had not gone far enough, and granted the defense’s request to disqualify the prosecutors, with the court asking for a special prosecutor to try Winkler’s case. Moreover, it also noted that the assistant prosecutors should have known that their meeting with the ex-husband may have solicited protected information and thus violated the defendant’s due process rights. The decision read:

Given that the entire prosecuting attorney’s office has had access to privileged materials, and that proceedings in this murder case are ongoing, it would be error to conclude we can prospectively quantify and neutralize the taint of the attorney-client privilege and due process violations simply by excluding evidence. We have concluded that “the bell cannot be unrung.”

The New England Center for Investigative Journalism published an article earlier this week looking at prosecutorial misconduct in Massachusetts and the rarity of a prosecutorial reprimand. The last time a Massachusetts prosecutor was disbarred was 1974, yet there have been at least 1,000 cases in which the defendants had alleged misconduct. In 120 of those cases, the decision was reversed, in part due to the prosecutor’s conduct in that case. In this article, the misconduct discussed involves more obvious violations of the law such as failing to disclose exculpatory evidence.

But would a situation where a prosecutor knowingly breaches the attorney-client privilege, perhaps a less flagrant violation, warrant a review by the Office of Disciplinary Counsel, an independent state agency, which oversees the state’s lawyer disciplinary process? Apparently, yes. According to the office, there is a wide range of what can be considered misconduct to be reviewed in Missouri, with Whirley and the other prosecutor falling into the first category.

This wouldn’t be the first time a complaint had been filed against Whirley or prosecuting attorney Robert McCulloch. Yet, it’s unlikely Whirley or any other prosecutor in this case would be reprimanded for whatever part they had in arranging that meeting.

The nonprofit sector has been diligent in advocating for changes in policing prosecutors, who are expected to hold themselves accountable and do so poorly. State bar associations also fail to do so. As noted by NECIJ’s article, even when recounting misconduct in decisions, judges often omit prosecutors’ names. Indeed, in the Court of Appeals’ decision, neither Whirley’s nor any prosecutors’ names are anywhere to be found. Will the St. Louis prosecutors’ misconduct also fall through the cracks, as prosecutorial misconduct usually does?—Shafaq Hasan